Date: 20010712
Docket: IMM-4561-00
Neutral Citation: 2001 FCT 755
Between:
SOKMIMDAH SINGH
MAHINDER JEET KAUR
RISHMINDER SINGH
SHAMINDER SINGH
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated August 7, 2000, in which the Board determined they were not Convention refugees as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) and had no credible basis to their claims as defined under subsection 69.1(9.1) of the said Act.
[2] The principal applicant, Mr. Sokmimdah Singh, is a 45-year-old Punjabi Sikh. The principal applicant's spouse, Mrs. Mahinder Jeet Kaur, and children, Rishminder and Shaminder Singh, base their claims on his own. All applicants are citizens of Malaysia. The principal applicant claims to have a well-founded fear of persecution due to his political and religious beliefs as well as his ethnic background.
[3] The Board found that there was no basis for concluding that the claimant has a well-founded fear of persecution due to his lack of credibility and his failure to establish his identity.
[4] In arriving at its conclusion of non-credibility, the Board made particular reference to the timing of the applicant's membership with the National Justice Party (NJP).
[5] In his Personal Information Form (PIF), the applicant writes what follows with respect to his membership in the KeADILan Party:
On 2nd September 1998, Mahathir Mohammed the Prime Minister of Malaysia, sacked his Deputy Anwar Ibrahim on the grounds of having bad moral character. . . . A reform movement known as KeADILan was then formed (which I joined and became a very active member) by Anwar Ibrahim to challenge the dictatorial policies, corruption, flagrant human rights violations which exist in the government of Mahathir Mohammed. . . . In December 1998, my reform movement KeADILan was officially registered under the leadership of Anwar Ibrahim's wife, Dr Wan Azizah. By April 1999 it became a Political Party known as National Justice Party or National KeADILan Party.
[. . .]
On 3rd May 1999 I became a Member after being introduced to this new opposition front party known as National Justice Party (KeADILan) by my close friend Zahari Ahmad . . .
[6] On the basis of the above excerpt alone, it is not clear whether the applicant joined the KeADILan reform movement in September 1998 or in May 1999. The Board, however, canvassed this issue with the applicant during the hearing, and obtained the following response:
Board . . . How did you get involved in the political situation? How did you get involved?
[. . .]
Applicant . . . I had a friend, Zahari Ahmat (phonetic); he introduced me to this party. . . . He told me: "If you want to join (inaudible) National Justice Party and you know about the party, then I'll make you a member."
Board Now when did he encourage you to join the party?
Applicant I became a member of the party on the 3rd of May, 1999. And as I become a member, he knows me, he knows how I feel about the whole government issue.
Board Okay. Sir, were you active or involved with the party prior to the 3rd of May, 1999?
Applicant I was just, like, for instance, I know what was going on with the National Justice Party.
Board Sir, were you involved? You are an educated man and I use my words carefully, so the word "involved" doesn't mean that you were familiar. I'm saying: were you involved, actively involved in the party prior to joining the party in May 3rd, 1999?
Applicant No, I was not.
[7] The above exchange makes very clear what the PIF did not, that is, that the applicant effectively joined the KeADILan Party, or the NJP, on May 3rd 1999. It becomes evident that the applicant's earlier reference to the party as the one which he "joined and became a very active member", is merely a means of introducing, at its evolutionary stage, the party he later joined. In my view, this is the only reasonable and logical interpretation of the applicant's testimony.
[8] As a result, I am of the view that the Board gravely misstated, or at the very least misapprehended, the applicant's explanations when it wrote:
He was asked if he was politically active or involved before joining NJP in May 1999. The principal claimant responded with a « No » . This testimony contrasts with his PIF. He states there that in September 1998, he joined a reform movement known as KeADILan after Anwar Ibrahim was sacked as Deputy Prime Minister. His PIF says that he joined then and became a very active member. This movement was registered in December 1998 and obtained NJP status in April 1999, according to his PIF. The panel finds him not to be credible based on this testimony.
The panel has difficulty in believing that he was politically active with NJP based on his testimony which is not credible. As well, the principal claimant failed to provide any corroborative evidence to this effect, . . .
[9] This error was of fundamental importance to the applicant's claim as the Board went on to conclude:
. . . The panel does not believe that the principal claimant was a member of this party nor that he was politically active as he alleges. We do not believe in the allegations arising from his alleged political activities.
[10] This error also led the Board to grant no probative value to the corroborating police report submitted by the applicant. In its own words, the Board states:
The panel also gives no probative value to the police report (footnote omitted). First, we do not believe the claimant's alleged story of being politically active. Second, we found contradictions between the claimant's testimony and the information provided in the report.
[11] I believe that the above error was so far-reaching and of such grave import to the applicant's claim that it warrants the intervention of this Court.
[12] For all the above reasons, the application for judicial review is allowed, the Board's decision set aside and the matter remitted for rehearing by a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
July 12, 2001
Date: 20010712
Docket: IMM-4561-00
Ottawa, Ontario, this 12th day of July, 2001
Present: The Honourable Mr. Justice Pinard
Between:
SOKMIMDAH SINGH
MAHINDER JEET KAUR
RISHMINDER SINGH
SHAMINDER SINGH
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Refugee Division of the Immigration and Refugee Board dated August 7, 2000, in which it determined that the applicants were not Convention refugees and had no credible basis to their claims as defined under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2, is set aside and the matter is remitted for rehearing by a differently constituted panel.
JUDGE
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